By Guilherme Martins and João Pedro Riccioppo Cerqueira Gimenes*

The Superior Court of Justice has scheduled the trial of Repetitive Theme No. 1,125, which deals with the exclusion of ICMS-ST from the calculation basis for PIS and COFINS, for next November 22, 2023.

THE Repetitive Appeals Topic #1125 refers to the exclusion of ICMS due in the tax substitution system (ICMS-ST) replaced by the calculation basis of the PIS and of the COFINS. The thesis arises from the judgment of Theme No. 69 of General Repercussion by the Federal Supreme Court, which recognized that ICMS does not form the basis for calculating PIS and COFINS, but without specifying whether ICMS-ST could be excluded.

In the judgment of Extraordinary Appeal No. 1,258,842, the Supreme Federal Court also recognized that the subject matter of the discussion was infraconstitutional, so that the STJ will probably give an outcome to the discussion.

Given the significant number of legal discussions currently underway on this matter, the outcome of the trial will have a significant impact on Brazilian taxpayers. Our team will closely monitor the development of the matter and is available to provide any clarifications.

*With the collaboration of Pedro Antônio GM Buzas.